Rodney James Miller v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
RODNEY JAMES MILLER
MEMORANDUM OPINION * BY
v. Record No. 1629-00-2 JUDGE JERE M. H. WILLIS, JR.
MAY 29, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
(Wayne R. Morgan, Jr., on brief), for
appellant. Appellant submitting on brief.
(Mark L. Earley, Attorney General; Donald E.
Jeffrey, Assistant Attorney General, on
brief), for appellee. Appellee submitting
on brief.
On appeal from his convictions of rape, in violation of
Code § 18.2-61, and breaking and entering with the intent to
commit rape, in violation of Code § 18.2-90, Rodney James Miller
contends that the trial court abused its discretion in refusing
to grant him a continuance. Finding no error, we affirm the
judgment of the trial court.
I. BACKGROUND
On February 4, 1997, at approximately 12:45 a.m., the
victim's home at 2030 Old Tavern Road in Powhatan County was
broken into, and she was raped. A Powhatan County grand jury
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
indicted the victim's estranged husband, Rodney James Miller,
for one count each of rape, breaking and entering with the
intent to commit rape, and inanimate object sexual penetration.
On June 6, 1997, the day of trial, Miller's counsel moved
the trial court for a continuance on the ground that several
witnesses were not present. She stated, "I was under the
impression that these witnesses would come voluntarily. I have
contacted the witnesses. Some of them are going to be able to
come and some of them aren't. Some of them are material." She
further stated, "I did not subpoena witnesses for character
because [Miller has] worked for nine years. His father is
hospitalized. He is not here because he is having surgery
today. He is not available and neighbors aren't here."
Miller told the court that he had talked with his attorney
on at least two occasions for approximately two or two and a
half hours. When asked by the court whether he was satisfied
with the services rendered by his attorney, he stated, "No
. . . [b]ecause not all of my witnesses have been subpoenaed
that can enlighten this case, and . . . I have basically very
few character witnesses here today on my behalf."
When asked by the trial court whether all of the witnesses
were character witnesses, Miller's counsel responded that they
were not and that the witnesses would "contradict some of the
evidence that we have heard at the preliminary hearing." When
questioned by the trial court why these witnesses had not been
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subpoenaed, Miller's counsel responded, "Just because of the
nature of the people were good friends. . . . Also, I have had
to work with an assistant who I can't get rid of and haven't had
for long." Noting that the witnesses had not been subpoenaed
and that Miller's counsel had "four months" to prepare for
trial, the trial court denied the motion for a continuance.
Miller was tried by a jury and was convicted of rape and
breaking and entering with the intent to commit rape, but was
acquitted of inanimate object sexual penetration. On appeal, he
contends that the trial court abused its discretion in denying
his motion for a continuance.
II. MOTION FOR A CONTINUANCE
A motion for a continuance in order to obtain the presence
of a missing witness is addressed to the sound discretion of the
trial court. See Shifflett v. Commonwealth, 218 Va. 25, 30, 235
S.E.2d 316, 319 (1977).
The Virginia Supreme Court has established a
two-pronged test for determining whether a
trial court's denial of a continuance
request is reversible error. Under this
test, we may reverse a trial court's denial
of a motion for a continuance only if it
appears from the record: (1) that the court
abused its discretion and (2) that the
movant was prejudiced by the court's
decision.
Lebedun v. Commonwealth, 27 Va. App. 697, 712-13, 501 S.E.2d
427, 434 (1998) (citation omitted).
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We find no abuse of discretion in the trial court's denial
of Miller's motion for a continuance. "In determining whether
the trial court properly exercised its discretionary powers, we
look to the diligence exercised by the moving party to locate
the witness and secure his attendance at trial." Cherricks v.
Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399
(1990). In Cherricks, we said "[h]ad the witness in fact not
been subpoenaed, the appellant would be in no position to
dispute the denial of a continuance. Such a lack of [due]
diligence on his part would bar him from contesting the trial
court's ruling." Id. at 100, 396 S.E.2d at 400. See also
Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20 (holding that the
accused had not exercised due diligence in issuing a subpoena
two days before trial). The record establishes that Miller
failed to exercise due diligence in securing the presence of his
witnesses, and the trial court implicitly so found. Miller's
counsel had four months to prepare for trial. She provided no
justifiable reason for her failure to subpoena the witnesses.
See McDonnough v. Commonwealth, 25 Va. App. 120, 129, 486 S.E.2d
570, 574 (1997).
Further, the record fails to establish that Miller was
prejudiced by the denial of his motion for a continuance.
Although his counsel stated that the missing witnesses were
"material," she made no proffer in support of this
characterization of the expected testimony. Thus, whether
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Miller was prejudiced by the denial of a continuance is a matter
of speculation. We cannot determine whether the testimony of
the missing witnesses would have been in his favor. See
Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151
(1994) (holding that the prejudice allegedly resulting from the
denial of a continuance cannot be based on mere speculation and
must appear from the record).
For these reasons, we hold that the trial court did not
abuse its discretion in denying Miller's motion for a
continuance.
Affirmed.
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